John Ivison: Unilateral regulatory changes could be answer to Canada’s border problems

In his State of the Union address in 1995, Bill Clinton said the U.S. is a nation of immigrants but also a nation of laws. It is wrong and self-defeating to permit abuse of those laws at the border, he said.

In his recent interview with the National Post, Justin Trudeau sounded more concerned with rationalizing the surge of migrants on Canada’s southern border than regaining control of the flow of asylum-seekers crossing from the U.S.

He offered no new ideas on how to stop those entering Canada illegally between official ports of entry and suggested the new arrivals will be an economic boon for the country.

“The fact that we have extremely low unemployment, we’re seeing labour shortages in certain parts of the country, (means) it is a good time to reflect that we are bringing in immigrants who are going to keep our economy growing,” he said.

The government has paid lip-service to modernizing the Safe Third Country Agreement with the U.S. that states migrants claiming refugee status must make their claim in the first “safe” country they arrive in – Canada or U.S.

A loophole in the pact with the Americans means it does not apply between official points of entry.

But there has been no progress in actually closing that loophole. The Trudeau government appears to have thrown up its hands in the face of American intransigence.

But Canadians’ faith in an immigration system that is legal, secure and economically-driven has been shaken. There is disbelief that the federal government can do nothing to take back control of Canada’s borders.

With good reason. There is no question that the political and legal environment has limited the government’s room for manoeuvre. But it is also true that the Liberals have not shown the will to reinforce the integrity of the refugee system. For example, once elected, the Trudeau government decided not to appeal a Federal Court decision that ruled it was unconstitutional for the government to strip asylum-seekers from countries designated as “safe” from appealing negative refugee rulings.

James Bissett was head of Canada’s immigration service and is a former Canadian ambassador. He suggested that by passing new regulations under the current Immigration Act, the government could act unilaterally and prevent applications for asylum from people residing in a “safe” country (apart from citizens of that country).

I’m afraid the government doesn’t want to stop the flow

“Designating the U.S.A. a ‘safe’ country and passing an order-in-council accordingly would stop the flow across the border. I don’t see this as a violation of the Safe Third Country agreement, but if it is, then we should unilaterally end the agreement,” he said. “But I’m afraid the government doesn’t want to stop the flow and hopes a large portion of the population will agree to keep the flow coming.”

Andrew House, a lawyer at Fasken and a former chief of staff to successive Conservative public safety ministers, called Bissett’s idea a “sound approach” but said that there is “virtually no possibility” of it being adopted by the Liberal government that dropped the legal appeal on refugees.

Howard Anglin, Jason Kenney’s former chief of staff when he was immigration minister, agreed that building on the existing designation of the U.S. as a safe third country would be legally possible but would likely face major practical problems. While the 1951 Refugee Convention ruled out asylum shopping, the U.S. is unlikely to take back claimants who don’t have legal status in the States, he said.

But Anglin said Canada could at least pass a regulation making anyone with legal status in the U.S. (either temporary or permanent) ineligible to claim asylum. It could include anyone who has been denied asylum in the U.S., after having gone through its asylum process.

“There is some risk the U.S. might consider this a unilateral expansion of the Safe Third Country agreement, and thus a violation of it, and that they could become difficult in administering it on their end, or even cancel it altogether,” he said. But, despite the likely outcry from refugee lobbyists, he said most Canadians would understand why Canada should not encourage asylum shoppers.

A family claiming to be from Columbia is arrested by RCMP officers as they cross the border into Canada near Champlain, N.Y.

Paul Chiasson/The Canadian Press

Andrew House was more enthusiastic about another of Bissett’s suggestions – that those who cross illegally be brought to an official port of entry and have their case examined there. House suggested that this could be done without abrogating the Safe Third Country agreement.

“There is no sensible reason why Canada would not choose to view the geography in imminent proximity to a port of entry as the port of entry.

“The language in the STCA is clear: ‘country of last presence’ means that country being either Canada or the United States, in which the refugee claimant was physically present immediately prior to making a refugee status claim at a land border point of entry.

“Consider the geography of many Canadian ports of entry – they are not right on the border, they’re often set back several hundred metres. And yet we deem the ‘country of last presence’ to be the U.S., not Canada. Why doesn’t Canada choose to interpret the STCA in such a way that a person attempting to cross 100 metres to the left of a port of entry is simply apprehended, brought to the port of entry and processed per the intended operation of the STCA – that is, turned back to the U.S.?”

If Canada is to live up to its aspiration to be a nation of laws, it’s high time it started exploring some of these regulatory changes. The lack of action smacks of a clash between the administrative will and the political won’t.